(Note: Details of the new notification are based on media reports, the original notification is as yet unavailable).

Scheme draws from the Consolidated Fund of India

The Ayushman Bharat National Health Protection Mission (the Scheme) is a scheme designed to provide health insurance cover of upto Rs 5 lakhs to identified beneficiaries, which include poor and deprived rural families, occupational unorganized workers and their families, among others. The new notification issued by the government states that since the scheme involves expenditure from the Consolidated Fund of India, it would fall under the purview of the Aadhaar Act. Specifically, this implies that this is a benefit under Section 7 of the Aadhaar Act, which mandates Aadhaar for recipients of subsidies, benefits and services, whose expenditure is incurred from the Consolidated Fund of India.

Representational image. Reuters

Notification within Section 7 exception in SC interim orders

This, in turn, means that this notification comes under the exception drawn by the Supreme Court on 13 March, 2018, which extended deadlines for government schemes, Aadhaar-bank account linking, etc. until the final disposal of the case. The Supreme Court had, however, drawn an exception for the Section 7 notifications mandating Aadhaar. These orders had led to concerns expressed all over of the resultant negative effect on the constitutional rights of the most poor and vulnerable sections of society.

Despite these appeals however, the Court did not extend the deadlines for the Section 7 notifications, and further, did not impose any restriction on the government from issuing new Section 7 notifications mandating Aadhaar. Thus, the Court, while not directly upholding Section 7 via this interim order, did not express any objection to Aadhaar becoming mandatory for Section 7 benefits, even prior to the final disposal of the case.

Aadhaar based exclusion and effect on poor sections of society

The effect is that Section 7 notifications and the mandatory use of Aadhaar are allowed. This, in turn, allows Aadhaar to become mandatory for a majority of the people, consisting mainly of the poor and vulnerable sections of society, who are most dependent on such governmental schemes for their survival. These include, for example, mid-day meals for school children, pensions for the old, food subsidies for the poor, stipends for teachers, scholarships for Adivasis, and so on.

For these sections of society, the biggest issue with mandatory Aadhaar is of Aadhaar based exclusion and denial. The petitioners in the Aadhaar case argued extensively on the resultant violation of right to life and liberty in such cases, and the Supreme Court itself acknowledged the violation of the right to equality here.

The Bench stated that the poor had an equal right to privacy. Reuters.

Further, the government’s arguments on the presence of exception handling mechanisms as a solution were pointed to as being in force only on paper, with the actual problems on the ground ranging from lack of technical capability, unawareness of the mechanisms, and even cheating by the shopkeepers and others. The inaccuracy of biometric authentication, failure of the authentication devices, and the disallowing of any alternate government issued ID to be used instead, are also major factors.

To gain perspective on the effect of such exclusion, consider the Ayushman Bharat Scheme itself. As per the tender documents issued, the Scheme targets 10.74 crore families. The actual number of people who will benefit from this will be higher. Even a 1 percent exclusion rate, however, means that 10 lakh families could be affected. During the Aadhaar hearings, the UIDAI had reported a 12 percent authentication failure rate. The actual exclusion rate will be different from the authentication failure rate, but this certainly gives perspective on the effect of Aadhaar based exclusion.

Other affected rights

Mandatory Aadhaar also puts other rights of such persons at stake, such as their right to privacy and bodily integrity, which is affected by the large scale collection of their biometric and demographic data, and the keeping of records in the form of metadata. The violation of the right to dignity was another key issue raised in the Aadhaar hearings (See here for details of the interim order and its effect on constitutional rights).

Aadhaar can be mandatory despite pending verdict

Despite the fact that none of these issues have been ruled upon, the interim orders of the Court have allowed that Aadhaar can become mandatory. The deadlines which were allowed to come into force at the time of the interim order were 31 March, though the government since extended them to June, and more recently until September. Aadhaar is thus, not yet mandatory for all Section 7 benefits, but this is thanks to the government’s extensions.

The effect on the Ayushman Bharat scheme is also, that the government can make Aadhaar mandatory for this scheme, and is entitled to issue the 31 March deadline for enrolments. Only the Supreme Court’s final verdict, can make a change to the situation, if the Court takes an objection to Aadhaar being thus made mandatory.

Use of Aadhaar and exception handling mechanisms in the Ayushman scheme

The documents, firstly, state that ‘as far as possible’, benefits must be made available to a beneficiary only on Aadhaar based identification. The documents have, however, allowed a beneficiary identified on the PMRSSM list to be identified via his Aadhaar, an Aadhaar enrolment slip, or in the absence of these, any other government ID (which will be specified later). This must be accompanied with the ration card or any other government ID as specified.

Beneficiaries without Aadhaar/ an Aadhaar enrolment slip, however, will only be allowed to receive treatment under this scheme once. Thereafter, for the next treatment, Aadhaar or the enrolment slip will be mandatory. Such beneficiaries, in fact, will be required to sign a written declaration to this effect, directed to enroll in Aadhaar and will also be provided with a list of the nearest Aadhaar enrolment centers.

Exception handling mechanisms for authentication failures

For those providing Aadhaar numbers/ enrolment slips, the QR codes will be scanned and a demographic authentication will be conducted for identification. For verification, the first step will be fingerprint or iris based authentication. While the documents do not specify exception handling mechanisms for those whose authentication fails, the newly issued notification fills this gap as well. For such persons, face authentication is to be done. If all three fail, Aadhaar based OTP is to be used. If this fails as well, the QR code scan is to be used. The only gap left here, is on what happens if the QR code scanning also fails.

A woman waits for her turn to to enrol for the Unique Identification (UID) database system, Aadhaar, at a registration centre in New Delhi, India. Image: Reuters

Treatment without Aadhaar in emergencies

Further, in case of an emergency, or if the person does not show the Aadhaar or the AB-NHPM issued e-card but claims to be a beneficiary, the treatment may be provided on showing any government photo ID, with a TPIN (Telephonic Patient Identification Number) issued by a call centre. In an emergency, even the government photo ID need not be insisted upon.

Inclusion of family members

Additional points are that a family member of a beneficiary may be identified via documents other than Aadhaar, such as a ration card, birth certificate or marriage certificate. However, for new persons to be added as a member of a beneficiary’s family, at least one of the family members must be verified, and this verification must be via Aadhaar.

Aadhaar seeding

Lastly, as per the documents, Aadhaar and the Scheme’s issued State ID are required to be linked within a specified time limit.

The process outlined thus do provide alternatives for those without Aadhaar, given that the government has no obligation at present to provide any further alternatives. While a larger number of exception handling procedures can be seen, the problems on the ground, as discussed previously, will be different.

This latest notification, mandating Aadhaar yet again for a crucial welfare scheme, thus underscores the issues with the Section 7 exception drawn by the Supreme Court in its interim orders. Though the multiple issues with Aadhaar persist, in particular of Aadhaar based exclusion, there is nothing to prevent the government from taking this step to mandate Aadhaar for this health insurance scheme.

The several drawbacks of Aadhaar, will thus have to be faced, yet again, by the poorest and most vulnerable section of society. Hopefully, the Aadhaar case will see a favorable verdict soon, alongwith relief to these sections of society from these issues with Aadhaar.

The author is a lawyer and author specializing in technology, privacy and cyber laws. She is also a certified information privacy professional.